Employees Busted While Driving Personal Vehicles, Because of GPS

Like social media, following your employees with GPS tracking devices has major implications for the world of work. Whether driving a company vehicle or your own personal vehicle, GPS tracking is changing the rules. Some employees are finding that out the hard way. Court cases have confirmed that, under some circumstances, even while using personal vehicles, employees can still legally be tracked – and busted for committing time sheet fraud.

According to Bradford LeHew, a labor and employment attorney with the firm of Fisher & Phillips, Chicago office, discussed some of the implications of using GPS to track employees. He referenced a case that may guide the future.

In the case of Cunningham v. New York State Department of Labor, the court ruled that under some circumstances, the State (of NY) did have a right install a GPS unit on its employee’s personal vehicle. After suspecting that Cunningham was falsifying time sheets and taking unauthorized absences from work, an investigator was hired to tail him. That proved unsuccessful.

With permission from the State attorney general’s office, a GPS device was placed onto Cunningham’s car. The resulting data reported that he often submitted fraudulent time records. He sued, charging illegal use of GPS data. But in court, judges ruled 3-2 that the use of the devices was not unreasonable, given the situation.

The majority listed the circumstances making it acceptable:

traditional methods (tailing him) had failed;

the employee knew he been warned about his poor performance and shouldn’t have been surprised by the data gathering;

and the devices used did not constantly monitor.

LeHew notes that company vehicles are similar to company-owned computers, phones, and e-mail: Employees should have no expectation of privacy in using any of them. Employers have the right to ensure their employees are performing company tasks on company time. GPS tracking can tie attendance to legitimate business, such as meeting with customers or attending meetings.

LeHew advises that any organization that is considering using GPS tracking to monitor employees should create a clear and thorough policy. It should make employees aware that their whereabouts may be monitored and openly communicate the company’s reasoning for using GPS tracking. The policy should avoid encroaching on employee privacy during non-working hours.